- A “search” has taken place if the police officer’s method of observation involved the use of devices that substituted for his/her own perception. Pursuant to People v. Clark, 103 Misc.2d 498, 426 N.Y.S.2d 692 (Sup. Ct., N.Y. Co., 1980), when a police officer is in a common hallway and puts his/her ear to the door of an apartment, the police officer is reasonable in his/her actions and has not violated 4th Amendment rights since listening with a naked ear from a hallway accessible to the public does not intrude upon any justified expectation of privacy of the occupants.
Flashlights—Pursuant to United States v. Lee, 274 U.S. 559, 47 S.Ct. 746 (1927), flashlights are NOT considered a search if they are used. Binoculars—Pursuant to United States v. Kim, 415 F. Supp 1252 (D. Hawaii, 1976), binoculars are considered a search if they are used but only if they substitute for the perception of the police office instead of an aid to the perception of the police officer. In other words, if the officer uses the binoculars to assist him/her in seeing something better than they can already see, it’s not a search. However, if the binoculars enable the officer to see something he/she cannot see with his/her own perceptions, then this is a search. Whether a search has occurred or not often is decided after a hearing where testimony is given and a judge may decide whether a search has occurred.
Use of Dogs—Pursuant to United States v. Place, 462 U.S. 696 (1983), dog sniffs are not considered a search. Dog sniffs only reveal criminality but they do not intrude on constitutional rights. In New York, the case of People v. Dunn, 77 N.Y.2d 19 (1990) held that the use of specially trained narcotics detection dogs to conduct a “canine sniff” does constitute a search within the meaning of NY Constitution, article I, section 12 since resort to this investigative technique enables police to obtain information regarding the contents of a place that has traditionally been accorded a heightened expectation of privacy. However, given the uniquely discriminate and nonintrusive nature of such an investigative device, as well as its significant utility to law enforcement authorities, it may be used without a warrant or probable cause, provided that the police have a reasonable suspicion that a residence contains illicit contraband. Accordingly, where law enforcement authorities had a reasonable suspicion that defendant’s apartment contained illegal drugs, the police had sufficient justification, while lawfully in the common hallway outside the apartment, to conduct a *canine sniff*, and defendant’s rights under NY Constitution, article I, * 12 were not infringed.
Mail Cover is the inspection of the outside of every envelope that comes in a person’s mail. Mail covers are not considered searches pursuant to United States v. Choate, 576 F.2d 165 (9th Cir., 1978).
A pen register is a record of all of a person’s outgoing calls from a particular phone. Conversations can be heard as a result of this process. Reasonable suspicion is necessary to get a pen register in New York.
WHAT CONSTITUTES A SEARCH—CONTINUED AND WHAT CONSTITUTES A SEIZURE?
Federally, a pen register is NOT considered a search as explained in Smith v. Maryland, 442 U.S. 735 (1979).
Trap & Trace Devices are records of all of a person’s incoming calls from a particular phone; conversations cannot be heard via this process. A trap and trace device is not considered a search.
Bumper Beepers are attached to a person’s automobile to track their movement. Bumper beepers are not considered a search when they are used to aid the perception of the police officer as explained in United States v. Knotts, 460 U.S. 276 (1983). If the beeper provides information that is not found from visible surveillance as well then the beeper is considered a search pursuant to United States v. Karo, 468 U.S. 705 (1984) and People v. Colon, 96 Misc2d 659(Sup. Ct., Bronx Co., 1978).
What Constitutes a Seizure:
(1) In the Federal system, the US Supreme Court stated in California v. Hodari, 499 U.S. 621 (1991). that pursuit does NOT constitute a seizure. Seizure is an application of physical force or a submission to authority. (2) In New York, pursuant to People v. Cantor, 36 N.Y.2d 106 (1975), a seizure is when an individual is physically or constructively detained by a police officer, interrupting or limiting his/her movement. In New York, a seizure does NOT have to involve the physical touching of a detainee. In New York, pursuit is a seizure. In New York, shouting “freeze, police!” is a seizure. A police officer drawing his gun is also a seizure. Saying Stop can be considered DeBour Level 1 conduct and is allowed. A police officer can handcuff a suspect based upon reasonable suspicion of a crime.